Two Ninth Circuit Nominees Advance to Full Senate

WASHINGTON (CN) – The Senate Judiciary Committee on Thursday approved two of President Donald Trump’s nominees to the Ninth Circuit, including one who sparked controversy over articles he wrote as an undergraduate on sexual misconduct, affirmative action and other issues.

The James R. Browning U.S. Courthouse in San Francisco, home of the Ninth Circuit Court of Appeals. (AP Photo/Ernest McGray)

Kenneth Lee, a partner at the Los Angeles firm Jenner & Block who is up for a spot on the Ninth Circuit, apologized for the writings at his nomination hearing last month, saying he was naive when he wrote pieces skeptical of affirmative action policies and sympathetic to a professor accused by four female students of sexual misconduct.

“When you’re young, your views aren’t nuanced, you don’t understand the complexity of the world,” Lee told the Senate Judiciary Committee in March. “A lot of times you just base it on your narrow personal experience and as you get older you realize the world is bigger, it’s richer, it’s more complex than based on your narrow experiences you had as a kid and that’s one of the things I’ve learned as I’ve gotten older.”

In answers to questions submitted in writing after his nomination hearing, Lee said the language he chose in one 1994 article that claimed minorities “cry racism” when they do not succeed was “hyperbolic.” An immigrant from South Korea, Lee also noted that in the article he said white people are also quick to attribute their failures to “reverse racism.”

Lee also said he regrets penning articles decrying multiculturalism as a “malodorous sickness” and saying homosexual people “generally are more promiscuous than heterosexuals.”

But Democrats were not satisfied with Lee’s answers to their questions about the writings, especially California Senators Dianne Feinstein and Kamala Harris, who said Lee withheld the articles from the committee and the screening commissions the senators have set up to vet potential judicial nominees from the state.

“Mr. Lee likewise has a troubling record and his failure to disclose problematic writings to both my and Senator Harris’ in-state commissions and to this committee raises concerns about his candor and judgment,” Feinstein said Thursday.

Lee told the senators he “made a good faith effort” to give them every piece of writing he had, even scouring his mother’s garage to find old articles. He said he did not find the articles sooner because they were not publicly available.  

Before joining his current firm, Lee worked as associate counsel and special assistant to President George W. Bush. A member of the conservative Federalist Society, he also clerked for Judge Emilio Garza on the Fifth Circuit.

Neither California Democrat, both of whom sit on the Judiciary Committee, supported Lee, a fact that in the past would have held up his nomination under the tradition known as the blue slip. Under that tradition, nominees could not go forward in committee without the consent of their home-state senators.

But Republicans have done away with this requirement for nominees for the federal appeals courts, much to the displeasure of Democrats.

Lee cleared the committee in a 12-10 vote Thursday morning.

Daniel Collins, a partner at the Los Angeles firm Munger, Tolles & Olson since 2003, also does not have support from Harris and Feinstein, but he too cleared the committee in a party-line vote Thursday morning.

Feinstein said her in-state commission raised concerns about Collins’ temperament and concluded he took legal positions in court solely for the purpose of shifting legal precedent.

“This concerns me as his role is to be an impartial arbiter, not an advocate, not someone who has an agenda” Feinstein said Thursday.

Collins also faced questions about work he did representing fossil fuel companies in litigation seeking to hold them responsible for the effects of climate change. In a filing in one of those cases, Collins wrote that “climate change allegedly results from the aggregate effects of greenhouse gas emissions.”

When pressed by Senator Sheldon Whitehouse, D-R.I., on whether he believes greenhouse gases cause climate change, Collins said he could not answer because the litigation is still pending.

“In view of those current representations, I do not think that it would be appropriate for me to make personal comments on factual matters related to that pending litigation,” Collins wrote to Whitehouse in response to questions submitted after his nomination hearing.

At his hearing, Collins explained lawyers typically use the word “allegedly” to describe claims in lawsuits at the particular point in the life of the case at which he made the filing.

Collins also faced questions about his views of criminal justice issues, including his statement in 2005 testimony to the House Judiciary Committee that “common sense suggests” longer sentences for people convicted of crimes lead to lower crime rates.

Also a member of the Federalist Society, Collins served as associate deputy attorney general at the Justice Department from 2001 to 2003. He clerked for the late Supreme Court Justice Antonin Scalia and spent time as a federal prosecutor in Los Angeles.

The committee also approved the nominations of three people up for seats on federal district courts in Texas: James Hendrix and Mark Pittman, both up for seats on the U.S. District Court for the Northern District of Texas, and Sean Jordan, who is nominated to a seat on the U.S. District Court for the Eastern District of Texas.

These nominees will benefit from a rules change Senate Republicans approved on Wednesday that lowered the amount of time they spend on the Senate floor before a confirmation vote.

The first judicial nominee to take advantage of the rules was Roy Altman, whom the Senate confirmed to a seat on the U.S. District Court for the Southern District of Florida on Thursday with a 66-33 vote.  

A former federal prosecutor who now works at the Miami firm Podhurst Orseck, Altman was relatively uncontroversial, though he did face questions about an article he wrote in 2014 suggesting courts should allow police to search the cellphones of the people they arrest, despite a trend of court rulings at the time to the contrary.

Responding to this concern from Democrats, Altman explained that a Supreme Court decision on the subject that came down after he wrote the article made it clear to him that he was wrong on the subject.

Altman worked as a federal prosecutor in Miami from 2008 to 2014, having clerked for 11th Circuit Judge Stanley Marcus after graduating from Yale Law School.

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